Massachusetts family law lawyer Jason V. Owens reviews a recent Boston Globe article detailing the dismal treatment of child molestation victims in Massachusetts Probate & Family Courts.
UPDATED 3/23/17 – We already know that Massachusetts has the highest rates of child abuse and neglect in the country by a wide margin. On January 30, 2016, the Boston Globe published a lengthy story that presented the particularly dismal treatment of child sex abuse victims in Massachusetts Probate and Family Courts. The story should strike a chord with Massachusetts family law lawyers, given the attitude of skepticism and disbelief that pervades Massachusetts Probate and Family Courts in cases involved allegations of child sex abuse.
The Globe‘s story details the sad and excruciating plight of a young girl in Essex County who first accused her father of sexual abuse at the age of 3. The story exposes the core untruthfulness of one the favorite myths that adults children: the myth that if that if a child tells another adult about sexual abuse, the child will be believed. As the Globe story illustrates, the main purpose of the “tell an adult” myth is making other adults feel good. In truth, with children under ten years of age, there is an extraordinarily high probability that they will not be believed if they accuse a parent of sexual abuse, particularly if the allegation is brought before a Massachusetts Probate and Family Court judge.
The words of the girl from the Globe story are chilling familiar to me as family law lawyer:
The bad stuff hurt too much, the girl said, so she took trips in her head. She imagined she was playing in the park, not lying on the basement floor or standing naked in the bathroom where, she said, her father touched her.
He told her not to tell anyone, she said, but she told anyway.
She told her mother, who went to the police. She told her therapist, who wrote a letter. She told the people who supervised her visits with her mother, who filed reports.
“I tried to tell anyone who would listen, but no one believed me,” said the girl, then 7, during a trauma evaluation conducted last spring.
Needless to say, none of the adults who believed the girl could actually help her, despite their best intentions. Not when a Probate and Family Court judge – who did not want to hear live testimony from the girl – disbelieved her story. Instead, the story explains how the girl’s allegations were blamed on her mother, with physical custody of the girl granted to the accused father. Five years later, when the girl turned 8, she was finally believed. Speaking again from experience, I can say this: she was one of the lucky ones. Many children who allege sexual abuse never get a second chance.
The girl’s history of allegations of abuse were summarized in the Globe story as follows:
At least five times between 2010 and 2014, the girl’s father, James Stanley Jr., was accused of sexually abusing her. But again and again, according to interviews and court and agency records detailing the case, Massachusetts Department of Children and Families social workers and a family court judge dismissed or disregarded the allegations. Eventually, the girl was sent to live with Stanley — a man already accused of molestation by two other girls — before she was finally removed to foster care.
For the uninitiated, the girl’s fate might seem a horrible aberration. Sadly, it is not. For a great many children in Massachusetts, the end result following allegations of sexual abuse is a placement of sole custody of the child with the accused father.
Table of Contents for this Blog
- Massachusetts: #1 in Child Abuse and Neglect Victims
- Judges vs. Science: Children Rarely Lie about Being Sexually Abused by a Parent
- Sexual Abuse Cases in Juvenile Court vs. Probate Court: Worlds and Resources Apart
- Massachusetts Probate & Family Courts: Judges Who Refuse to Hear Live Testimony from Child Sex Abuse Victims
- Massachusetts Adults: Talking a Good Game while Ignoring Child Victims of Abuse and Neglect
- UPDATE (11/21/2016): Massachusetts Only State Granting Custody Rights to Convicted Rapists
- UPDATE (12/14/2016): Child Victims Treated Poorly by the Massachusetts Criminal Justice System too
- UPDATE (3/23/17) – USA Gymnastics Scandal Puts Spotlight on Child Sex Abuse
There has been no shortage of press attacking the Massachusetts Department of Children and Families (DCF) for its failure to protect Massachusetts children from neglect and abuse in recent years. In my experience, however, the damage caused by DCF inaction in sexual abuse cases often pales in comparison with the overt, highly destructive treatment of sexual abuse allegations in the Probate and Family Courts. In Probate Court, the reflex when facing allegations of sexual abuse is often to transfer custody of the child directly to the father who is accused of sexual abuse.
Like perpetrators of gun violence, there is simply no debate that perpetrators of sexual abuse are overwhelmingly male. (It is estimated that women are the abusers in about 14% of cases reported among boys and 6% of cases reported among girls.) Indeed, most sexual abuse cases are perpetrated by a male friend or family member who knows the abused child. However, only 30% of child sexual abuse is reported to authorities. Accordingly, where 62,939 incidents of child sexual abuse were reported in the United States in 2012, we safely assume that the actual number of victims is at least three times as high.
By way of comparison, of the approximately 73,000,000 individuals under the age of 18 who live in the United States, about 1 out of 1,000 will fracture a bone in a given year. Twice as many will be victims of sexual abuse.
Despite the ready availability of statistics indicating sexual abuse is twice as common as broken bones among American children, Massachusetts Probate and Family Court judges routinely disbelieve children’s allegations of sexual abuse against a parent, often finding that the other parent (invariably the mother, in most cases) has engaged in “parental alienation” for failing to react to their child’s accusation with skepticism and disbelief the judge expresses.
Decades of scientific evidence overwhelmingly suggest that children rarely lie when making sexual abuse allegations:
Children almost never make up stories about being sexually abused. In fact victims are often revictimized in multiple ways for truthfully asserting they have been sexually abused. …. The evaluator needs to approach an allegation of sexual abuse with a clear understanding of who has a vested interest in lying and who in telling the truth. The victim places herself in considerable jeopardy as a result of telling the truth. She may be rejected by the perpetrator and ostracised by her family. She may be “punished” by placement in foster care or an institution. Her family may he torn apart, and she may see herself as responsible for its demise. She will have to tell the intimate details of her story to many people. Both the shame and guilt for having been involved in the sexual abuse, and the feeling of being responsible for any negative consequences to the family may inhibit her from telling.
Despite the very high incidence of sexual abuse and very low incidence of children lying about sexual abuse, judges in custody cases routinely label children alleging sexual abuse as liars:
A 2012 University of Michigan study, paid for by the US Department of Justice, found that custody evaluators on average estimated that between a quarter and a third of child abuse allegations were false.
“This raises serious concerns,” the report admonished, “because empirical findings about the rates of false child abuse allegations in divorce cases are much lower.”
The 2012 study also noted that gender bias can play a role in custody disputes, with negative stereotypes inclining officials to disbelieve women’s allegations of abuse as fabrications made to gain advantage. The issue has not been systematically studied in Massachusetts for decades, but a 1990 study by the state Supreme Judicial Court found that mothers were held to a higher standard of behavior than fathers; and “a majority” of the probate judges surveyed agreed that “mothers allege child sexual abuse to gain bargaining advantage.” A smaller-scale 2002 report on the Massachusetts probate courts by the Wellesley Centers for Women echoed many of those findings.
There is a word for this type of erroneous, pattern behavior: judicial bias. Unfortunately, this particular bias targets the most vulnerable population imaginable, child victims of sexual abuse.
Amidst the constant focus on the failures of DCF investigators in the field, a key point often gets lost in the shuffle about the enormous power and resources that DCF wields inside a court room. Few people realize that DCF is a two-pronged organization. The first and more familiar prong involves DCF investigators out in the field, performing home visits. The less well known prong occurs inside a Juvenile court room, however, and in the Juvenile Court, DCF is formidable.
In the courtroom, DCF sports a team of talented, experienced attorneys. And they are hardly alone. Care and protection cases virtually all feature at least three attorneys: (1.) Counsel for DCF, (2.) court-appointed counsel for the child, (3.) court-appointed counsel for each parent. DCF investigators work in close concert with DCF attorneys, and the needs of children are aggressively protected.
Contrast the Juvenile Court picture with the Probate and Family Court. In Probate Court, between 50-75% of cases involve pro se parents without lawyers. Virtually no lawyers are appointed for the child or parents in Probate Court. Probate Court judges sometimes order “family service investigations” by overworked probation officers, but with Probate Court budgets stripped to the bone by a stingy and resentful state, most investigations require one or both parent to pay at least $7,500 for a Guardian ad Litem. Otherwise, no investigation occurs.
So who represents the abused child in Probate and Family Court? Most often, that task falls on the shoulders of a self-represented mother who lacks legal training and objectively, and is herself the subject of significant judicial bias:
“It is very common for courts to punish and retaliate against mothers,” said lawyer and author Barry Goldstein, who also trains family court judges, “not realizing what they’re really doing is punishing the child.”
Massachusetts Probate & Family Courts: Judges Who Refuse to Hear Live Testimony from Child Sex Abuse Victims
The single biggest difference between Probate and Family Court and other Massachusetts courts (including Juvenile Court, District Court and Superior Court) is the abject refusal by most Probate and Family Court to accept live testimony from child victims of sexual abuse. The general aversion to hearing live testimony from child witnesses is an antiquated relic from a bygone era, when most Probate Court litigation involved parties represented by counsel. In the modern era, where 75% of cases include no lawyers, there is simply no way for Probate Court judges to obtain accurate evidence about children by listening to the self-serving testimony of parents without legal training. Instead of questioning children directly, however, many Probate Court judges go years without hearing testimony from children.
Massachusetts Probate and Family Court judges will tell you that the reason they avoid accepting live testimony from child witnesses is a desire to “insulate children from the judicial process”. There is certainly some merit to this argument in routine divorce and custody cases. In child sex abuse cases, however, the refusal of Probate and Family Court judges to accept live testimony from victims often results in tragedy. Instead of assessing the credibility of the child victim’s claims, Probate and Family Court judges accept muddled testimony from parents and written sources that make it easy for the judge to discount the child’s allegations.
The Globe story details the silencing process for the little girl from Essex County:
In the hundreds of pages of court records, reports, transcripts, and medical records documenting the case, the girl is rarely heard from. She did not testify at trial. DCF workers recorded a stray word here or there. Only in the trauma evaluation, filed under seal in court, does she get a chance to be heard.
“I told my mom and I think my mom believed me,” she told Milde, and later added:
“It hurt. I’m telling the truth. Do you believe me? Will the judge believe me?”
It is impossible to be “believed” when the fact-finder deciding your fate refuses to hear your voice. Massachusetts appellate courts have stressed the importance of obtaining live testimony from children in sex abuse cases on many occasions with holdings like this:
Without live testimony the judge, as finder of fact, is deprived of the opportunity to observe the demeanor and manner of expression of the witness, and the parties are deprived of the opportunity to clarify and test the veracity of the statements by means of cross-examination. Accordingly, to the extent that the statutory requirement of unavailability is met by concern for potential harm to a child witness who otherwise is competent and could be physically present to testify, a trial judge should not lightly dispense with the opportunity for live testimony, and ordinarily should consider whether any accommodations could minimize or eliminate possible harm to the child before finding the child unavailable …
Repeat this case law to a Massachusetts Probate and Family Court judge, however, and the likely response will be that this: the judge will not, under any circumstances, hear directly from the child witness. Probate Court judges almost never hear the live testimony of child victims who literally beg probation officers, GALs, parents and DCF investigators to let them speak with the judge. The deeply held notion that most child sex victims will be “traumatized” by testifying demonstrates just how out of touch judges often are with the depth and trauma caused by sexual abuse itself. The worse thing that can happen to a child who have taken the risk of telling an adult, next to the abuse itself, is being ignored. Such children have already been victimized by horrendous crimes, and the intentional silencing of their voices by the judge deciding their fate only compounds their trauma in profound and lasting ways. The least a judge can do is look the child in the eye and listen to their story.
How did Massachusetts get so bad at helping children? A toxic mix of disinterest and budget cuts. Massachusetts residents like to complain about DCF, but punish politicians who attempt to fully fund the agency. Massachusetts residents are even worse at funding Probate & Family Courts. As the Globe article reports, Massachusetts Probate Courts received less funding in 2014 than they received in 2007, despite having five times the caseload of lavishly funded District and Superior Courts. It is no surprise that failure is endemic here.
Children these days are bombarded with the same message again and again: if someone touches your private parts, tell an adult. What Massachusetts children aren’t told is that the judge who will decide whether they must keep seeing their abuser will not listen, or even sit in the same room while they tell their story. If Massachusetts parents, teachers and police were honest with their children, they’d tell kids the grim truth: don’t “tell an adult” you were sexually abused, because if you do, you probably won’t be believed, and there is a good chance that you will be taken away from your non-abusing parent, who will be punished because you made the mistake of telling.
Most of the time, kids who tell an adult they were molested by a parent in Massachusetts don’t get rescued. They get punished.
As if leading the country in child neglect and abuse was not enough, Massachusetts has recently received attention as the only state in the country that appears to guarantee due process rights for convicted rapists seeking custody of children conceived by rape:
Unlike the other 19 states that require a criminal conviction to limit custody rights, Massachusetts appears to stand alone by expressly guaranteeing parental rights to convicted rapists who can convince a judge that visitation is in the best interest of the child. (Not even the seven states who offer no protection to rape victims on custody issues goes so far as to enshrine the rights of convicted rapists under the law – as an affirmative right – the way Massachusetts does.)
The Boston Globe has published another strong article, this time about how Massachusetts treats child sex victims in criminal cases. Unlike other states, which provide child witnesses with the means to testify outside of the presence of their abuser and a crowded court room, Massachusetts treats child sex abuse victims like adults in a rape case:
Some allow children to testify out of the courtroom, using a closed-circuit camera, or allow comfort dogs to sit with them on the witness stand, sometimes napping at their feet. In Canada, child witnesses in such cases are brought into the courtroom through a back door so they do not have to walk past the defendant, and they sit behind a screen where they are shielded from the alleged perpetrator, who can still watch the witness from a television monitor.
Traditionally, Massachusetts has not allowed for these types of accommodations. The US Supreme Court has ruled that a vulnerable witness may testify from a location away from the courtroom. But the Massachusetts Supreme Judicial Court has adhered strictly to the state Constitution, which specifically notes that a defendant has the right to confront an accuser “face to face.” Prosecutors have been hesitant to ask a judge to allow a comfort dog or even a stuffed animal to be brought into the court for fear it could lead to a successful appeal of a conviction.
The Globe describes a 10-year old girl who was unable to testify in a crowded court, while facing her accuser. As a result, her assailant was acquitted. Unsurprisingly, the girl appears to have suffered irreparable damage from the experience:
The child who testified last summer is now in the fifth grade. She walks the streets with her head down, always afraid she’ll see the man she said hurt her. (The Globe does not identify victims of sexual assault without their consent.)
“He knows where I live,” she said. “He knows where I go to school.”
The Globe’s piece highlights how Massachusetts continues treat child victims of sexual violence worse than any state in the nation. Whether one is talking about the state having the highest neglect and abuse rates in the nation, dismal protections for child sex abuse victims in custody and criminal cases, or the fact that Massachusetts appears to be the only state in the country that guarantees due process rights for convicted rapists seeking custody of children conceived during a rape, Massachusetts never seems to top outdoing itself when it comes to disregard for child victims.
Although the context is somewhat different, I would direct readers to view Deadspin.com’s coverage of the US gymnastics sexual abuse scandal, which demonstrates how official discomfort with and disinterest in sexual abuse can result in rampant abuse of children even in highly public positions. For those unaware, former Team USA gymnastics doctor Larry Nasser has been charged with sexually abusing 81 female athletes over the course of many years. Nasser’s behavior was hardly a secret: Michigan State cleared Nasser of all abuse charges in an investigation in 2014, and his victims included multiple Olympic medalists. After new allegations against Nasser emerged in 2016, Michigan State conducted another investigation of Nasser, this time finding that he sexually assaulted a 15-year old patient on multiple occasions in 2000. Sadly, Nasser was allowed to continue abusing young gymnasts for another 15 years.
Deadspin’s coverage of the new report include multiple quotes from the 2000 victim, Rachael Denhollander, who only reported the abuse years after it occurred. Her words will ring true for any child who accuses an adult of sexual abuse in the Probate and Family Court or other “official” contexts:
Denhollander was 100% right to fear she would not be believed. Despite the lip service paid to child sex abuse in the media and popular culture, the reality is that many – if not most – children who report sexual abuse are not believed unless there is physical evidence of sexual trauma.
In the United States, 1 in 6 women and 1 in 33 men reported experiencing an attempted or completed rape at some time in their lives. In a country of 300 million, that equates to more than 50 million rapes or attempted rapes. Only 12% of rapes result in a conviction, and the figures are even lower for child sex abuse victims.
The reality is that among female rape victims, more than 61% are under 18, and 93% of juvenile sexual assault victims know their victims, while 99 percent of female and 85 percent of male survivors were raped by a male.
New Report Shows Massachusetts Continues to Lead the Country in Abuse and Neglect of Children
Last year, we reported that Massachusetts led the nation in neglect and abuse of children:
According to the federal data, 31,863 children were the victims of abuse or neglect in Massachusetts in fiscal year 2014. The Massachusetts abuse/neglect rate of 22.9 victims per 1,000 children was significantly greater than the next highest state, Kentucky, which had a rate of 20.6 victims per 1,000 children. Even more troubling, Massachusetts had far and away more victims than the #3 state, Rhode Island, with a rate of 16.0 victims per 1,000 children.
A new report has been released, this time covering 2015, and we see that Massachusetts residents continue to lead the nation in neglecting and abusing their children. The total number of abused children in Massachusetts held steady in 2015, at 31,089. The state maintained a substantial lead on all other states in percentage of children neglected or abused, with 22.4 out of every 1,000 Massachusetts children suffering from neglect or abuse. The next highest state, Kentucky, saw a substantial drop in neglected and abused children from the prior year at 18.7 out of every 1,000 children, down from 20.6 the year before.
Massachusetts abuses and neglects its children at more than the double the national rate of 9.2 out of every 1,000 Massachusetts children. Anyone who tells that the massive disparity in abuse and neglect in Massachusetts is due to “better reporting” is either uninformed or practicing what Massachusetts residents do best: avoidance. Massachusetts was the epicenter of the Catholic sex abuse scandal for a reason; the region has a long history of averting its eyes and pretending child abuse does not occur.
Indeed, there is every reason to believe that Massachusetts continues to seriously underreport incidents of sexual abuse. Of the 31,089 incidents of abuse or neglect in Massachusetts in 2015, just 706 (2.2%) were reported as sexual abuse. In contrast, out of the 23,006 incidents of abuse or neglect in Ohio, a whopping 4,683 (20%) were reported as sexual abuse. Nationwide, 7.2% of neglect or abuse cases involve sexual abuse. Are we really supposed to believe that Massachusetts – of all places – only has 25% as much child sex abuse cases as the rest of the country?
Protecting children from sexual crime is simply not a priority in Massachusetts, and no amount of self-congratulation over college graduation rates or standard of living will change that fact. After all, where else but Massachusetts would the leading newspaper publish a story entitled, “Dozens of convicted rapists in Mass. have avoided prison”, with little or not response from government officials?
Comparing Child Population with Sex Abuse Rates with Supported Findings of Sexual Abuse in Massachusetts
Consider this: as of 2015, Massachusetts had a total child population of 1,387,087. Widely accepted statistics suggest that 20% of boys and 25% of girls are sexually abused before the age of 18. If you assume an equal number of male and female children in Massachusetts, that means that 138,708 Massachusetts boys and 173,385 Massachusetts girls will be sexually abused in the current Massachusetts population. This works out to an average of 17,338 sexual assaults on children per year in Massachusetts.
Now consider that in 2015, DCF entered a grand total of 706 supported findings of sexual abuse in 2015. Think about that for a moment.
Here are some other facts we know:
- 93% of juvenile sexual assault victims know their victims
- 99% percent of female and 85 percent of male survivors were raped by a male
- 77% of perpetrators are adults (i.e. not other children)
- 46% of perpetrators of child sexual abuse are family members, of which an overwhelming majority are male
- 61% of American rape victims are raped before the age of 18
- 29% of all forcible rapes, nationwide, occurred against victims who were less than 11 years old
- 11% of all rape victims were raped by their father or step-father
- Victims of incest are far less likely to report sexual abuse than those victimized by non-family members because of the negative consequences associated with reporting a family member
These uncomfortable facts make two things clear: first, that child sexual abuse by adult male family members is quite common, and second, that only a tiny fraction of such abuse is reported to authorities. People do not like these statistics. They are ugly and awkward. But this does not make them untrue.
Ironically, a place like Massachusetts, with its high standard of living and sterling educational statistics, may be less likely to acknowledge the presence of widespread child sexual abuse than more socio-economically depressed regions, where the abuse of children is more likely to be openly acknowledged as an unfortunate fact of life.
About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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